The ICC appeals judgment on Abd-Al-Rahman jurisdictional challenge: A foreseeable turn to substantive justice?

On 1 November 2021, the International Criminal Court (ICC) issued its Appeals Judgment on Abd-Al-Rahman Jurisdictional Challenge which could have been the ICC’s own Tadic Interlocutory Appeal on Jurisdiction. In addition to challenging the legality of Security Council (SC) Resolution 1593, the Defence claimed the ICC was prevented from exercising its subject matter jurisdiction over crimes against humanity and war crimes committed in a non-international armed conflict (NIAC), as defined in Articles 7, 8(2)(c) and (e) Rome Statute, for conduct that occurred in Darfur, Sudan in 2003-2004.

While the ICC Appeals Chamber did not find the legality challenges posed to the SC referral of the situation Darfur, Sudan, persuasive, it mentioned that if confronted with a genuine incompatibility with the Statute it could exercise its compétence de la competence/Kompetenz-Kompetenz to determine whether a SC referral is invalid (para 46). It thus confirmed that in contrast to the Special Tribunal for Lebanon, it would be ready to follow the legacy of Tadic.

This blogpost is on the second main issue raised by the Defence: whether the principle of legality prevents the ICC from applying its statutory definitions of crimes against humanity and war crimes over Abd-Al-Rahman, a national of Sudan, for conduct that occurred in Darfur, Sudan in 2003-2004. Gabriel Lentner wrote an incisive post in this blog summarizing the Appeals Chamber (AC) judgment and the questions it leaves open. My purpose here is to demonstrate the risks emerging from how the Chamber defined the legality test in retroactive SC referrals. On the one hand, it will be shown that the AC rightly overturned the Pre-Trial Chamber’s shortsighted ruling on this issue. On the other hand, it will be argued that the AC’s approach to the principle of legality potentially signals a return to substantive justice at the ICC.

Was the Rome Statute directly applicable at the relevant time?

The Abd-Al-Rahman case emerges from the SC referral, adopted in March 2005, of the situation in Darfur, Sudan since 1 July 2002 to the ICC (S/RES/1593, para 1). Sudan is not a State party to the Rome Statute, and the crimes for which Abd-Al-Rahman is accused allegedly occurred before the SC adopted the referral of the situation in Darfur, Sudan to the ICC. SC referrals and ad hoc declarations of acceptance are two means by which a situation may be retroactively subjected to the Court’s jurisdiction. In the Defence’s view, the Court’s jurisdiction in this case is restricted to crimes that, at the time of their commission, were defined as crimes either in Sudan’s domestic law or in international treaty and/or customary international law (CIL).

The Defence relied on Articles 22(1) – nullum crimen sine lege – and 24 Rome Statute – non-retroactivity ratione personae. Article 22(1) reads: 

‘A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court.’

The Pre-Trial Chamber (PTC) had determined that article 22(1) of the Statute aims at ensuring that the Court ‘does not deviate from the intention of the drafters that it should apply the statutorily defined crimes, and no others.’ (para 39) In particular, the PTC found no violation of the principle of legality, as:

‘[t)he case against Mr Abd-Al-Rahman was brought by the Prosecutor before the Court on the basis of provisions detailing the prohibited conduct, which existed and were in force at the time of all of the events underlying the charges.’ (para 40).

This reading of Article 22(1), which prima facie is loyal to the strict legality aspiration of the Rome Statute’s drafters, neglects to acknowledge that the Statute was not applicable law in Sudan at the relevant time.

Many scholars have cautioned the Court against taking a restrictive understanding of nullum crimen sine lege in situations emerging from a retroactive SC referral or ad hoc declaration (see Akande, here; Milanovic, here, de Souza Dias, here, Lentner, here, and myself, here). Applying nullum crimen sine lege without admitting that individuals may be brought before the Court for conduct that took place when the Statute was not applicable to them at the time, reveals an assumption that the sixty states which brought it into force exercised, as Sadat argued, universal prescriptive jurisdiction (at 263). That is, that they legislated for the world, and that, any crimes within the ICC’s jurisdiction, notwithstanding their customary or treaty based status, are since the Statute’s entry into force applicable worldwide.

The PTC was actually following a long line of cases which, as shown elsewhere, left this interpretation of the nature of the Rome Statute open. Yet, once the Trial Chamber IV acknowledged in the Ntaganda case – yes, the infamous case about war crimes committed against members of the same group – that ‘the Statute is first and foremost a multilateral treaty which acts as an international criminal code for the parties to it’, it became clear that a self-contained reading of the Statute and of Article 22(1) could not be maintained for long (para 35). Importantly, the AC in Abd-Al-Rahman Jurisdictional Challenge affirms that as the accused is a national of Sudan charged for crimes allegedly committed in Sudan, which is not a State party to the Rome Statute, the crimes in the Statute were not directly applicable to him at the relevant time (para 87). It then finds that the PTC erred in its interpretation of article 22(1), as the latter provision had to be examined in light of article 21(3) RS (para 92). Article 21(3) requires the Court to apply and interpret the Rome Statute in a manner that is consistent with internationally recognized human rights. By invoking Article 21(3), the AC recognizes that the scope of nullum crimen sine lege as understood in international human rights law is broader then the definition provided in Article 22. This part of the judgment is admirable, as it shows an openness to finally engage with other sources of law than the Statute itself.

How to apply the principle of legality when the ICC exercises retroactive jurisdiction?

How to assess whether the principle of legality, as understood in international human rights law, has been violated remains a debated question. The Chamber addresses the question as follows:

‘Although the precise language of the principle differs across jurisdictions, […] courts place particular emphasis on the concepts of ‘foreseeability’ and ‘accessibility’’.

Experts in European human rights law will have recognized that the AC is referring to the practice of the European Court of Human Rights. Indeed, the footnote to the quote above cites the well-known S.W. v United Kingdom case, and the Duch and the Khieu and Nuon Appeals judgments of the Extraordinary Chambers in the Courts of Cambodia (ECCC), which themselves justify this approach by relying on ECtHR’s case law. The ICTY, drawing from ECtHR’s case law, also used this approach. However, other regional human rights courts and the UN Human Rights Treaty Bodies do not use the accessibility and foreseeability elements to assess alleged violations of the principle of legality. Whether it is appropriate to exclusively rely on the ECtHR’s case law to define the principle of legality as understood in international human rights law is questionable.

In any event, the accessibility and foreseeability elements are normally used when assessing, as in S.W. v United Kingdom, the lex certa and lex stricta component of nullum crimen sine lege,. That is, whether the law was precisely defined and whether the judge strictly interpreted the norm, so that the individual was able to ascertain which conduct were criminal at the time in question. Indeed, the cited ECCC’s Appeals Judgments use the accessibility and foreseeability elements as additional safeguards to the question of whether the charged offence (or mode of liability) existed as a matter of applicable national or international law at the time of the alleged conduct (see Duch Appeals Judgment, paras. 95-96, 98; Khieu and Nuon Appeals Judgment, para 758, 762). Simply put, for the ECCC, the principle of legality requires (1) that the offences and modes of responsibility were established under applicable domestic law or international law at the time and (2) sufficiently foreseeable and accessible to the accused.

At first glance, this is also the approach the ICC Appeals Chamber adopts in the Abd-Al-Rahman Jurisdictional Challenge. The Chamber affirms that:

‘[i]n interpreting article 22(1) of the Statute in a manner consistent with human rights law, a chamber must look beyond the Statute to the criminal laws applicable to the suspect or accused at the time the conduct took place and satisfy itself that a reasonable person could have expected, at that moment in time, to find him or herself faced with the crimes charged.’ (para 86)

This would in principle lead to first assessing whether the criminal laws applicable to Abd-Al-Rahman in 2003-2004 captured the charges for which he is accused at the ICC, and then assess whether it was foreseeable, at that time, that his conduct could amount to the crimes he is now charged for.

The Chamber’s analysis however differs. Looking at Abd-al-Rahman’s personal circumstances, his authority and command as leader of the Janjaweed militia, the AC comes to the general conclusion that:

‘he was reasonably capable of taking steps to comprehend and comply with his obligations under international law, and he was capable of appreciating the attendant penal consequences’ (para 88).

The Chamber does not ascertain whether the crimes for which Abd-al-Rahman is accused were indeed criminalised by Sudan’s national law or CIL. Instead, in an odd move, which in its view addresses the status of the counts against Abd-Al-Rahman, the AC notes that the drafters intended the Statute to be generally representative of CIL. From this abstract observation, the Chamber concludes that there is a presumption that it was foreseeable for any accused, whether from a State party or not, that they could face prosecution for crimes within the Court’s jurisdiction (para 89).

The danger with the Chamber’s approach to the principle of legality is that even in cases where it would not be able to establish that a certain conduct was criminalised under applicable national law or CIL, it might still decide that it was foreseeable for the accused that they could face prosecutions for crimes defined under the Rome Statute.

Moreover, as the AC notes it, the foreseeability element is informed by factors such as the ‘flagrantly unlawful nature’ of the conduct. This factor however, as Grover demonstrates, is too easily satisfied in cases of international crimes and comes very close to reducing nullum crimen sine lege to a mere principle of justice à la Nuremberg (at 172-173). For instance, the ICTY Chamber in Ojdanic’s Motion Challenging Jurisdiction, after noting that the principle of legality is ‘first and foremost a “principle of justice”’, affirmed that although the ‘immorality or appalling character of an act’ does not suffice to its criminalisation under CIL, it still refutes ‘any claim by the Defence that it did not know of the criminal nature of the acts.’ (para 42). The temptation to equate immorality with foreseeability, and by-pass the crucial question whether the conduct was criminalized by applicable domestic or international law at the relevant time is indeed high in international crimes trials.

Conclusion

Although there are reasons to be suspicious about the arrival of the foreseeability test at the ICC, it is important to note that the AC ended affirming that ‘only once a link is drawn with the charges in this case can the question of the legality of the charges be definitively answered’ (para 91). Thus, it is now up to the Defence to challenge the Court’s jurisdiction regarding specific charges. It may be that future chambers will always go through the two steps approach, or, most probably, that only a looser foreseeability analysis would be performed instead of first scrutinizing whether the crime was itself customary or not.

In theory, the Court needs to establish that all 61 count against Abd-Al-Rahman were criminalised under CIL at the time they took place. Understandably, this a lengthy and cumbersome exercise, which even the ICTY did not undertake after having established in Tadic that CIL provided for crimes against humanity and war crimes in NIACs. That CIL imposed criminal liability for most, if not all, counts against Abd-Al-Rahman is (highly) possible. Yet, a well targeted jurisdictional challenge could provide an opportunity for settling the debates, among others, about the status of gender persecution as a crime against humanity (Counts 21 and 31 of the Abd-Al-Rahman Confirmation of Charges Decision). It may be for these types of ‘disputed’ crimes that the presumption, as spelled out by the Chamber, is rebutted and that a ‘compatibility check’ with CIL is necessary.

This blog post was first published on EJIL:Talk! on 22 November 2021.